Addis Ababa University
Joint PhD Programme in Peace,
Federalism and Human Rights
Federalism and Human Rights: The
Challenges of Multiculturalism
8th Class
Prof. Thomas Fleiner (ideas
Prof. Lidija Basta Fleiner)
Outline:
• I - Historical Context and Key Issues
• II - F - Words defined: federalism, federal
political systems, federations
• III - Outlook
I - Historical Context and Key Issues
I.1. Historical Context
•
A historical development of federalism as a
normative political theory shows that
federalism emerged as an alternative to a
centralised modern state with a view to:
– a) sovereignty;
– b) legitimacy
• Althusius first challenges the rise of a
centralized modern state – politics as an art
of consociation (XVII century)
• Peace as an aim/ telos of international
federalism (I. Kant: Endurable Peace)
• The “American Invention”/dual federalism
and 19th – century debates over sovereignty
in a federal state
• The mid 20th-century debate: federalism
has either become obsolete (Laski);
federalism is a panacea for Europe
• The contemporary debate over federal
citizenship in multicultural democracies
I. 2. As a Consequence: Major Issues
• DISPUTES/AMBIGUITIES OVER:
1.majority/minority relationship
2.diversity
3.the nature of sovereignty and a
constitutionalist argument
1+2+3 = values ideologically
heterogeneous
• FROM THE BEGINNING PEACE AS A
“PARALLEL TELLEOLOGY” OF FEDERALISM
– a linkage to multicultural fragmented
societies
In general – redefining political integration:
• Can federalism - and how - contribute to
the quality of democracy in a multicultural
setting?
• How to understand multicultural
citizenship in terms of the relationship
between liberal nationalism and the ethnic
minorities’ demands for equal citizenship
with special rights?
Major dilemmas:
Is there a structural tension between
modern statehood and pluralism?
• Do diversity and heterogeneity threaten
the integrative force of the nation-state
(political integration)?
• How does federalism in general, and
federalism accommodating
multiculturalism in particular affect
constitutional politics of human rights?
Human Rights and their effective protection
revisited with a view to federalism and intercommunal peace
• Direct constitutional protection and direct
effect of human rights: The rule of law
and federalism - group accommodation and
(possibly) collective rights as a specificity
• Example: The implementation of
international human rights legal standards
in federal multicultural states -> for the
sake of communal peace collective rights
by ascription can be given priority over
individual human rights.
I.1.3.Justifications of federalism
•
•
•
•
Constitutionalist argument: vertical
separation of powers –> limited
government –> personal freedom
Diversity argument: Protection of
minorities
Conflict-transformation argument:
resolution of internal regional, religious,
linguistic or ethnic (prevailingly) conflicts
The increase-of-democratic-participation
argument: multi-layer governmental
structure
II - F - Words defined: federalism, federal
political systems, federations
II. 1. Federalism:
a/ normative political theory/ideology
b/ a great variety of institutional
arrangements
• Federalism/Non-Decentralisation is
different from decentralisation (nonhierarchical, Elazar)
Forms and Types of Federalism
1.
Personal and/or Territorial Federalism
(forms)
2.
Federalism and Power-Sharing
3.
Monistic vs. pluralist (type of) federalism
(US -> CH): from constitutionalism to
peace as an objective of federalism
1+2+3: The difference between form and
type of federalism
II.1.1. Personal/Corporate Federalism
• Governmental power is not distributed over
territories but over population groups
• Limits of governmental jurisdiction are
determined by voluntary group membership,
not by territorial borders
Advantages:
• Policy making targets directly communities
• Whereas in TF with ethnically
heterogeneous territories a social minority
becomes a political minority, PF retains
substantial autonomy in regions with mixed
population
NB: PF and TH are imbedded in power-sharing,
but PSH is also applied in unitary states
(Netherlands, Austria)
II.1.2. Power Sharing
Elements:
• Executive power-sharing/grand coalition
• Minority veto
• Proportional representation of major
groups in elected and appointed offices
• Cultural autonomy/collective rights or
territorial federalism
II.1. 2.1. Types of power sharing
• Autonomy as a direct groups’ control over
important affairs of their concern
(asymmetrical and symmetrical federalism)
• Group-Building-Block/consociationalism
encouriging collaborative decision-making
(Dayton Agreement in Bosnia)
• Integrative Power Sharing rejecting
cohesive groups and accommodating
crosscutting interests (Switzerland)
II. 1. 2. Cont.: Diversity of Federal
Institutional Designs
2.1.2. Federalism as an institutional
arrangement is a constitutionally
established balance between self-rule and
shared rule - a critical importance of a
constitution!
• Federal political system
• Federal state/federal
government/federation
• Confederation/federacies/regionalism
with federal elements
• Federal government is a type of a
compound governmental organisation
within which both central and component
governments operate directly upon the
people, each being independent within
respective, constitutionally laid down
sphere of allocated powers and in coordinating relationship with another,
whereby the residuary powers lie – in most
of the cases within component units (R.
Watts).
• A federal political system unites separate
polities within an overarching political
system by distributing power among
general and constituent governments in a
manner designed to protect the existence
and authority of both (D. Elazar)
Outlook with regard to the theory
1. The nature of conflicts in multi-ethnic
societies -> multiculturalism as an endemic
post-modern challenge and its relation to
federalism
2. State-building and nation-building ->
legitimacy in multicultural/multi-ethnic
societies and rather constitution-building
then (merely) constitution-making
3. The particularity of minority rights as
“universal rights” design -> democracy and
constitutionalism in multicultural/multiethnic societies
1 +2+3 : a particular nature of
minority/majority relation in societies with
community cleavages is a cross-cutting
problem!